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The purpose of the Governmental Committee Affairs blog is to provide useful guidance on new and existing laws, regulatory actions, and court cases—so members can stay informed and meet their compliance obligations for the benefit of the organizations they represent.

 

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Inclement Weather / Emergency Closure

Posted By Alex Cobb, Governmental Affairs Committee, Wednesday, December 5, 2018
Updated: Wednesday, December 5, 2018

“You want a prediction about the weather?” asks Bill Murray’s character in the iconic movie Groundhog Day. “I’ll give you a prediction: it’s going to be cold, it’s going to be grey, and it’s going to last you the rest of your life.” Fortunately, winter does not last forever, but work issues with inclement weather can seem never-ending nonetheless.

  • Do you pay workers on days when the office or business is closed?
  • Do you require employees to take paid time off or allow them to take leave without pay so they preserve their hours of PTO?
  • How do you make the system fair across a network of geographical work sites that are affected differently by the weather or other emergencies?
  •  Can you create a policy and procedure that effectively manages closures due to weather and closures due to other emergencies: power failure, gas leak, water main break, etc.?
  •  Are you prepared to handle a natural disaster that closes your business or a branch office for the foreseeable future, potentially weeks or months: tornado, earthquake, etc.?

It is best to have answers to these questions well before you need them. Better still to have them in writing and to have your staff educated in them to prevent surprises that upset your employee base at a time when their emotions may already be running high … and their finances may already be running low.

Here are some best practices to keep in mind or to consider anew as we head into the months most prone to emergency closure:

  • Make your policies / procedures as simple and as clear as possible. Our agency has 36 sites across 17 counties and we struggled with this issue of when to close and when to stay open through various iterations of a policy before finally settling on, “If your local schools are closed, you are closed.” We serve a vulnerable population and this mantra became easy for everyone to understand and to remember – patrons and employees alike.
  • Communicate your policies and procedures in multiple places and in multiple ways and review them regularly. We cover inclement weather / emergency closures on day one with new employees. It is included in our policy / procedure manual. Every year in mid-November we re-announce it and then we do so again right before the first big storm of the season. Communicate, communicate, communicate.
  • To the extent possible, create a system fair to all employees. Do some of your employees have work-from-home privileges and others don’t? You’d better address this issue in your inclement weather policy because it will rear an ugly head if some employees lose a day’s pay or are forced to take hours of PTO and other employees claim their work-from-home privilege.
  • Employers with unionized workers will likely negotiate this matter; be sure to follow the stipulations of that agreement. Likewise, exempt employees must be paid their full salary, but employers can require those same exempt employees to take PTO if that is what policies / procedures require.
  • It is fairly easy to expand the inclement weather procedures to cover other emergency closures like water main breaks rather than needing to create a separate policy.
  • Rather than creating a variety of policies to govern extreme or rare cases of closure, you might instead include a general catch-all that allows leadership to review closures on a case-by-case basis and make appropriate decisions based on that review.
  • To enhance morale and employee support, you might consider an end-of-fiscal-year review each year of time lost to inclement weather. If your policies require employees to take PTO and it was an especially harsh winter with multiple days lost to ice and snow, the company may consider a restoration of PTO equivalent to 1-3 days of PTO for each employee.

In the movie Frozen, Olaf the snowman says, “Some people are worth melting for.” When it comes to your policies and procedures on inclement weather, we would all do well to include a little heart and warmth for the harsh winter months.

Tags:  emergency  hr  human resources  weather 

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Mid-Term Elections: Voting Information

Posted By Governmental Affairs Committee, Sunday, October 28, 2018

With Mid-Term Elections just around the corner, the Governmental Affairs Committee wanted to make sure you had the resources necessary to make informed decisions on voting.

SHRM has so many great tools and resources, there is no need to reinvent the wheel.

For Missouri State information and the ability to see your local candidates as well, please go to: http://www.advocacy.shrm.org/app/electionmap?4&m=130882&lookupInput=MO

For information on Key Public Policy Issues, please go to: https://www.shrm.org/hr-today/public-policy/hr-public-policy-issues/documents/2018-shrm-public-policy-issues-guide-030518.pdf

Greene County Sample Ballot: https://greenecountymo.gov/files/PDF/file.pdf?id=33012

Christian County Sample Ballot: http://www.christiancountymo.gov/sampleballots.html

Our right to vote is a great freedom; thank you for taking the opportunity to make your voice heard on November 6th, 2018!


Tags:  ballots  elections  vote  voting 

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Handbook Hazards

Posted By Governmental Affairs Committee, Monday, August 13, 2018

Most companies have an employee handbook laying out policies, procedures, benefit, pay and performance review processes, workplace conduct expectations, and other information which may be helpful to both employees and employer.

For example in a protested unemployment claim, a clear attendance policy spelled out in a handbook which all employees must agree to abide by may provide ammunition in the hearing. It won’t guarantee a win for HR, but the lack of clear expectations may increase the chance for a win by the claimant.

Your intent to comply with anti-discrimination laws should be reinforced regularly with new and existing employees, and your handbook should include that as well, as a starting point.

But as well-intentioned and helpful as such documents may be, there can also be pitfalls. Our May dress guidelines blog post illustrates some of the difficulties you must think about for any such policy, and it’s not the only one. In fact in the last few years we’ve even heard some attorneys say it may be better to have no handbook at all, as there are so many ways they can go wrong.

Here are a few tips for maintaining a safe and effective employee handbook (but this by no means a comprehensive guide):

  • Make sure you don’t compromise your “at-will” status--explicitly and prominently state up-front in the handbook that you are an at-will employer, and the handbook does not constitute an employment contract.

  • Keep it updated as your policies change, as employment laws change, and as court cases shift the legal environment and may require handbook clarification, or even deletion of certain verbiage. 

  • Be careful with prohibitions against personal expression of opinions—negative comments about the company or management for example—both in the workplace and on employees’ own time. 

    This is an ever-shifting target as court cases continue to re-define how much, if any, employers can restrict “free speech” in social media and other contexts. There’s a gray area on the spectrum from protected free speech to bullying or sabotaging your company’s reputation, so seek legal guidance for both your policy manual and for specific workplace situations.
  • Along the same lines, be careful about inadvertently prohibiting legally protected “concerted activity”—when two or more employees (whether union members or not) act together for their own benefit as it relates to pay, benefits, or working conditions. This could even extend to protection for two or more employees walking off the job over a dispute with management, depending on the nature of the problem.
  • This is a very tricky legal area--seek professional guidance before acting against employees in any such situation—and when writing your attendance and conduct rules for your employee handbook.

  • Drug and alcohol impairment is difficult to prove, but many handbooks use verbiage that sets a trap for HR and/or management to have to make this judgment. Simply prohibit unprofessional behavior in the workplace, and then in any given situation simply focus on specific behaviors, so you’re not putting yourself in the position of declaring what’s causing the behavior.

    For example: “Your speech is slurred on the phone with customers, you’re disrupting your co-workers with loud talking, and you stumbled into Janet. We can’t allow those behaviors.”

    So now the behavior falls under unprofessional conduct, without the need to accuse someone of being under the influence of any substance, potentially avoiding arguments, confrontations, or perhaps being wrong about the reason for the unprofessional behavior—which in the end is less important than the behavior itself.

    (Fyi “breath smelling of alcohol” is not a behavior, and there are medical conditions that can cause that. In the absence of unacceptable behaviors, someone’s breath may not be enough to declare there’s a problem—although certainly hygiene including disruptively bad breath can be a problem, and can be addressed under workplace conduct, but that’s a separate matter!). 
  • Explicitly state in the handbook that the guidelines are to promote consistency and fairness, but management has discretion to make case-by-case exceptions. Employees will understand and appreciate “giving someone a break” on an attendance policy for example if there are special circumstances, as long as the guidelines are generally followed.

    This is a tightrope, so make sure members of management and HR are talking to each other about how their discretion plays out in real life, to stay within reasonable boundaries so the handbook doesn’t become irrelevant. A written policy may or may not help in any given wrongful termination lawsuit, but could be useless if the handbook is seen as mere lip service.

Get a professional legal opinion on your handbook on a regular basis to make sure you’re not missing anything—and that you haven’t set legal traps for yourself.

Finally, of course, don’t lean on a handbook as your only communication tool for important information. If a policy or practice is worth putting in the employee manual, it’s worth reinforcing in word and in deed on a day to day basis in the workplace. Actions speak louder than words…so if you prohibit unprofessional conduct in the handbook, but bad behavior is rampant in the “real world” of the office or production floor, you’re asking for trouble—and it could call into question the credibility and usefulness of the entire handbook.

Tags:  handbooks  hr  human resources 

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U.S. Dept. of Labor Reissues 17 Bush-Era Opinion Letters

Posted By Governmental Affairs Committee, Wednesday, June 13, 2018
Updated: Tuesday, June 12, 2018

On January 5, 2018, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) reissued 17 Opinion Letters that were previously issued in January of 2009 in the waning days of the Bush administration. The Obama administration promptly withdrew the Opinion Letters in March, 2009, “for further consideration.” Subsequently, the Obama DOL discontinued the practice of issuing Opinion Letters in favor of publishing more Administrator Interpretations. 

 

The requirements of the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA) are established by statutes and regulations promulgated by the DOL. Employers or other interested parties may seek guidance from the WHD regarding interpretation of the FMLA and FLSA. In response, the WHD may provide official written explanations of the FLSA or the FMLA requirements through Opinion Letters. Notably, Opinion Letters are intended to be “fact specific,” based on the facts presented in the individual inquiry.

 

The 17 re-issued Opinion Letters are fact-specific. Many of the re-issued Opinion Letters are based on specific job positions in specific industries, i.e., the exempt status of civilian helicopter pilots, the exempt status of project superintendents of a commercial construction company, and the exempt status of clinical coordinators and business development managers for a temporary medical professional provider. Other reissued Opinion Letters opine regarding calculating the regular rate of pay for firefighters and alarm operators under a collective bargaining agreement, the exempt status of client service managers at an insurance company, and the application of the retail or service exemption to plumbing sales/service technicians, compensation of “on-call” hours of ambulance personnel.

 

The Opinion Letters do not create “new law,” but rather may provide employers with guidance as they navigate the strictures of the FMLA and the FLSA. For a complete list of the re-issued Opinion Letters (including a link to the Opinion Letters), visit https://www.dol.gov/whd/opinion/flsa.htm.

Tags:  Dept of Labor  DOL  FLSA  FMLA  HR  human resources  WHD 

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Tax Reform Requires Employers to Re-Think Approach to Settlement Agreements

Posted By Governmental Affairs Committee, Wednesday, June 6, 2018

A provision contained in the Tax Cuts and Jobs Act of 2017 (the “Act”) now limits tax deductions for certain types of settlement agreements. Specifically, Section 13307 of the Act, styled “Denial Of Deduction For Settlements Subject To Nondisclosure Agreements Paid In Connection With Sexual Harassment Or Sexual Abuse,” (“Section 13307”) prohibits employers from taking income tax deductions for:

 

1. Any settlement or payment related to sexual harassment or sexual abuse if the settlement or payment is subject to a nondisclosure agreement; or

2. Attorney’s fees related to such settlements.

 

Previously, when the parties in a dispute involving allegations of sexual harassment or misconduct settled those claims, they agreed to a nondisclosure provision in the settlement agreement. In other words, both parties would be prohibited from disclosing the terms and amount of the settlement (with corresponding penalties resulting from any violation of the provision). The nondisclosure provision did not affect whether any monies paid pursuant to the terms of the settlement agreement were tax-deductible.

 

Now, however, if a settlement agreement subject to Section 13307 of the Act contains a nondisclosure provision, then the parties to the settlement agreement may not take a tax deduction for the amount of the settlement or any corresponding attorneys’ fees.

 

Another potential problem that employers may face relates to settlements that resolve multiple claims. Indeed, instances arise where employees and employers settle matters that resolve sexual harassment claims and non-sexual harassment claims in one fell swoop. Section 13307 does not define the terms “related to sexual harassment or sexual abuse” so careful drafting of the settlement agreement and/or ancillary agreements is recommended to maximize opportunities to deduct payments that are not subject to Section 13307. Furthermore, a portion of attorney’s fees attributable to non-Section 13307 claims may also be deductible.

 

For more information, please go to https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/tax-reform-confidential-agreements-harassment.aspx

Tags:  hr  human resources  tax reform 

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Dress Code Challenges

Posted By Governmental Affairs Committee, Wednesday, May 9, 2018

“I can’t believe she wore those today! Has someone told her boss? So inappropriate. She’s always bending the rules.”

If you haven’t started hearing this around the office, brace yourself, it is coming! There will always be office gossip and someone who pushes the envelope in what they wear to work, but having a documented dress code, with photo examples, can help you navigate how to best respond when the issues arise.

For those working in an office environment, the flexibility of an alternate dress code during those dreaded, long, hot summer days can be of great benefit. Some questions to ask if you are thinking about altering the dress code for a period of time include:

  • What is appropriate given our level of in-person customer contact?
  • We already have casual Fridays when employees can wear jeans, should we allow shorts on Fridays during certain months of the year?
  • Should a special dress code be tied to a company goal (fundraising, project completion, etc.)?
  • Should we lay out expectations of modesty for a company picnic?

If you choose to move forward with creating an altered dress code, be sure to keep in mind things such as:

  • Skirt length (and sometimes necessary – how high a slit goes – eek!)
  • Short/capri length (if you will even allow shorts/capris)
  • Shoulder strap width (some may also add, no portion of a bra can show)
  • Neckline descent (is any amount of cleavage appropriate?!?!?!)
  • Condition of clothing (holes, cutouts, etc.)
  • Transparency of fabric (I know I’ve seen blouses leaving nothing to the imagination)
  • Acceptable shoe types – sandals, flip flops, Toms, etc.

It is also advisable to include your employees in the dress code discussion. When they have a voice, they will be more likely to actually follow the policy instead of push it to the limit. Plus, they might have some really great ideas!

Each new season brings new trends and new reasons to revisit a dress code policy – don’t think of this as a one and done; it is an every year affair. Mark your calendar now to revisit your newly revised dress code in 10-12 months!

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March 2018 update - Federal Tax Reform 2018

Posted By Governmental Affairs Committee, Thursday, March 29, 2018

On December 22, 2017, the Tax Cuts and Jobs Act (TCJA) made significant changes to qualified moving expenses, employee achievement awards and qualified bicycle commuting expenses.

Current Employee Achievement Awards

Currently, employee achievement awards that are deductible by an employer are excludable from an employee’s gross income, limited to a certain amount. Amounts that are excludable from gross income under Section 74(c) for income tax purposes are also excluded from wages for employment tax purposes. An employee achievement award is an item of tangible personal property given to an employee in recognition of either length of service or safety achievement, and presented as part of a meaningful presentation.

The TCJA adds a definition of “tangible personal property” that may be considered a deductible employee achievement award.

It provides that tangible personal property shall not include cash, cash equivalents, gift cards, gift coupons, or gift certificates (other than arrangements conferring the right to select from a limited array of such items pre-approved by the employer), or vacations, meals, lodging, tickets to theater or sporting events, stocks, bonds, other securities, and other similar items. This provision is effective for amounts paid or incurred after 2017.

Please review any employee achievement awards that may have been presented to employees during 2018 to determine if these awards need to be reclassified based on this new definition of tangible personal property.

Employee. For this exclusion, treat the following individuals as employees.

  •  A current employee.
  •  A former common-law employee you maintain coverage for in consideration of or based on an agreement relating to prior service as an employee.
  •  A leased employee who has provided services to you on a substantially full-time basis for at least a year if the services are performed under your primary direction or control.

Exclusion from wages. You can generally exclude the value of achievement awards you give to an employee from the employee's wages if their cost isn't more than the amount you can deduct as a business expense for the year. The excludable annual amount is $1,600 ($400 for awards that aren't “qualified plan awards”). See chapter 2 of Pub. 535 for more information about the limit on deductions for employee achievement awards.

To determine for 2018 whether an achievement award is a “qualified plan award” under the de-duction rules described in Pub. 535, treat any employee who received more than $120,000 in pay for 2017 as a highly compensated employee.

If the cost of awards given to an employee is more than your allowable deduction, include in the employee's wages the larger of the following amounts.

  •  The part of the cost that is more than your allowable deduction (up to the value of the awards).
  •  The amount by which the value of the awards exceeds your allowable deduction.

Exclude the remaining value of the awards from the employee's wages.  Go to https://www.irs.gov/pub/irs-pdf/p15b.pdf for more information.

Tags:  hr  irs  tax reform  wages 

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September 2017 Update

Posted By Governmental Affairs Committee, Friday, September 1, 2017

On August 17, Elizabeth Wente and Wade Early from Spencer Fane presented our Fall Governmental Affairs update at our regular meeting.  Wade went into depth regarding recent changes in Missouri law, while Elizabeth presented what is happening on the Federal level.  Highlights of each are below. 

 

Missouri News

Missouri Human Rights Act

Governor Greiten signed the bill into law on June 30, 2017, and it took effect on August 28, 2017. The changes include:

 

  1. Causation standard -  has been raised from “contributing factor” to “motivating factor”.  Definition – “the employee’s protected classification actually played a role in the adverse action or decision and had a determinate influence on the adverse decision or action.”   This brings the standard closer to that used in federal anti-discrimination laws.
  2. Punitive damages –  a. expressly excludes attorneys’ fees, and,  b. cannot exceed (i) actual back pay and interest, plus (ii) a fixed amount based on the defendant’s number of employees.
  3. Individual liability – plaintiffs can no longer sue individual supervisors for violation of the MHRA.
  4. Time limitation – 180 days to file a charge.  The new rule makes timeliness a jurisdictional prerequisite to bringing a lawsuit.
  5. Wrongful discharge – Missouri now has a Whistleblower Protection Act (WPA) which should preempt common law wrongful discharge claims.  The Act is intended to prevent courts from creating further exceptions to the at-will employment doctrine. 

Workers’ Compensation

Senate Bill 66 modified eleven existing sections of the Missouri Workers’ Compensation law.  Governor Greitens signed the bill on July 5, 2017, and it took effect on August 28, 2017.

  1. Section 287.780 – Increased the standard from “contributing factor” to “motivating factor”.
  2. Section 287.390 – Compromise settlement provision.  After a “claimant” has reached MMI, and a settlement offer has been made based upon the employer’s physician’s disability rating, the claimant shall have a period of 12 months to acquire a rating of their own.  Otherwise, any settlement shall be based upon the initial rating, absent “extenuating circumstances.” 

Minimum Wage

The new law forbids any political subdivision from establishing a minimum wage.  Municipalities cannot increase the minimum wage above the state minimum

Unemployment Benefits

Starting in January, Missouri’s current 20 weeks of unemployment benefits would drop to as few as 13 weeks (among the shortest in the nation).  The length of benefits is tied to the state unemployment rate. 

Right to Work

Signed by Governor on February 6, 2017 and was set to become effective on August 28, 2017.  However, this is now on hold as unions turned in three times the amount of signatures needed to stop the law. The state will now begin to verify the signatures to ensure there is enough to put the referendum on the November ballot.

  1. Has a “grandfather clause” meaning it does not affect existing union contracts.  Until the contract expires, an employee is required to pay union dues.
  2. The union is also seeking the amend Article 1, Section 29 of the Missouri Constitution to prevent the enactment of right-to-work legislation. 

Federal News

Trump Policy

While campaigning, Trump stated that the following are items he would look into or change:

Immigration (spoke about the wall between Mexico and the US at his rally in Arizona on August 22, 2017), Tax Reform (spoke on this topic during his visit to our fair city on August 30, 2017) , Paid Maternity Leave (driven by his daughter), and Transgender Rights and Discrimination. 

Department Of Labor

What is the status of the FLSA White Collar Exemptions? – On July 25, 2017, the DOL’s Wage and Hour Division announced its intent to publish a Request for information (RFI) seeking input from the public before issuing revised proposed overtime exemption regulations to address, most significantly, the minimum salary level required for exempt status.  The DOL is asking for comments on:

  • The appropriate measure for the inflation factor
  • Using market or region specific thresholds
  • Using different thresholds for different exemptions
  • Whether the short and long test should be reinstated or updated
  • The importance of salary v. duties
  • Analysis regarding the potential impact of the proposed 2016 final rule
  • Analysis regarding the automatic update

Comments must be submitted by September 25, 2017

Supreme Court

Is sexual orientation protected under Title VII?   - This is a potential issue for our supreme court.  Our federal courts disagree and our government disagrees as well.  

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June 2017 Update

Posted By Governmental Affairs Committee, Wednesday, May 31, 2017

On April 19th & 20th, the MO State Council of SHRM held its annual Legislative Conference in Jefferson City.  On April 19th, attendees were given the opportunity to meet with state lawmakers, in person, to let them know how pending workplace legislation directly affects our employers and us as HR professionals.  If you have never participated in a meeting with an elected official before, this unique experience gives attendees the opportunity to visit the offices of our state legislators along with other MO SHRM advocates.  SHRM’s Governmental Affairs team provides policy updates on pending HR-related proposals, as well as best practices on how HR professionals can share with lawmakers the ways that the proposals will impact their workplace. 

On April 20th, a full day of HR hot topics was presented by top employment law attorneys from across the state.  There were presentations on Paid Sick Leave Trends; Pregnancy Discrimination, Light Duty, and Disability Accommodation in the Workplace; Lesbian, Gay, Bisexual and Transgender Issues in the Workplace; Social Media, Marijuana, Ban the Box, and Other Rapidly Changing Legal Issues; FLSA Update; and Trump & Greitens – What Employers Can Expect Under the New Administrations.  If you have not attended this conference in the past, I strongly urge you to consider attending next year.  It is a great opportunity to network with other HR professionals across the state as well as learn about current HR issues from legal experts in the field. 

 

Missouri News

On Friday, May 12th, the Missouri Legislature wrapped up the 2017 legislative session.  Unlike our federal Congress which meets most of the year, the Missouri Constitution specifies only a five-month legislative session, from early January through mid-May every year.  The following paragraphs explain the most recent progress made when the 2017 legislative session ended:  

 

Workers’ Compensation

Lawmakers approved a bill that will allow courts to consider whether plaintiff’s losses have been covered or reduced through other sources such as insurance, workers’ compensation or adjusted hospital billing.  SB 31 will stop plaintiffs from using inflated damages to trigger windfall-sized awards.

 

Workplace Laws

On May 12th, the Missouri General Assembly approved HB 1194, which will preempt and nullify all local laws establishing minimum wage rates higher than Missouri’s state minimum wage of $7.70/hour.  If Governor Greitens signs the legislation, it will not become effective until August 28, 2017.  Currently, the City of St. Louis’ minimum wage ordinance that went into effect on May 5th requires covered employers to pay workers $10/hour.   

 

SB 43 was passed by the MO legislature, and provides a long-awaited response to a series of Supreme Court decisions that lowered the bar in employment discrimination cases and opened the door to frivolous lawsuits against businesses.  For a decade, the court-constructed standard has made Missouri one of the easiest places in the country to sue a company and win.  Trial lawyers profited by exploiting this situation, which forced businesses into a defensive posture, stunting their ability to make necessary personnel decisions to address workplace problems.  SB 43 fixes this problem while ensuring that businesses engaging in the unacceptable act of discrimination are held accountable.  The bill awaits a signature from Governor Greitens.  If signed by Governor Greitens, which is anticipated, SB 43 will become effective on August 28, 2017. 

 

State Budget

A balanced budget was passed on time without tax increases. 

 

Federal News

OSHA- Delayed Reporting Requirement

As you may recall, the new OSHA reporting requirements rule went into effect January 1, 2017.  The compliance schedule was to be phased in over two years.  Establishments with 250 or more employees in industries covered by the recordkeeping regulation, or establishments with 20-249 employees in certain high-risk industries, were to submit information from their 2016 Form 300A by July 1, 2017.   

 

As of Wednesday, May 17th, OSHA has delayed this requirement, announcing it is not accepting electronic submissions of injury and illness logs at this time.  OSHA’s intent is to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically.  Updates will be posted to the OSHA website, www.osha.gov, when available. 

 

EEOC

On April 4th, 2017, a federal appeals court ruled, for the first time, that federal nondiscrimination law prohibits employers from discriminating against employees on the basis of their sexual orientation.  The 7th U.S. Circuit Court of Appeals upended three decades of precedent and set the issue up for review by the U.S. Supreme Court with its “landmark ruling”.  While the decision currently applies only in Illinois, Indiana, and Wisconsin, it affects employers nationwide. 

The EEOC already takes the position that the law prohibits sexual orientation discrimination and has been pursing such claims.  Because the 7th Circuit’s decision puts it at odds with other federal courts of appeals, the Supreme Court may soon weigh in on the issue.  So for now, given the EEOC’s position and the circuit court split, employers should proceed with caution.  Some experts suggest adding “sexual orientation” to their policies as an example of prohibited sex discrimination and adding sexual orientation harassment to training materials.     

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May 2017 Update - Missouri and Federal Level Updates

Posted By Governmental Affairs Committee, Friday, April 28, 2017

Since our last update in March, there has been some productive activity and progress in our State Capitol.  The 2017 legislative session is headed towards the finish line, with less than two weeks left until adjournment on May 12.   

Missouri News

 

Expert Witness

On March 28, 2017, Governor Greitens signed into law House Bill 153.  The legislation allows Missouri to join 42 other states and federal courts in applying a stricter standard for expert witness testimony, an important step as the legislature works to improve Missouri’s legal climate.  Called the Daubert standard, it ensures that only evidence deemed relevant, reliable and provided by qualified individuals will be admitted as expert testimony.  Expert witnesses are very influential in shaping the outcome of cases.  Under the Daubert standard, the judge serves a critical role making sure an expert witness meets certain basic criteria.  “Several other common-sense tort reform measures are also well-positioned for passage this legislative session,” said Dan Mehan, Missouri Chamber president and CEO. 

 

Unemployment

By a vote of 100-56, the House passed a measure linking unemployment benefits to the unemployment rate to help ensure the solvency of the unemployment trust fund.    

 

Workforce Development

Just before spring break, the Senate approved SB 10.  This legislation will make it easier for businesses to access customized job training programs. 

 

Workers Compensation

Last month the House heard two Senate Bills that are an effort to fix court-induced problems with the Missouri’s workers’ compensation system. 

 

Under SB 113, Missouri employers could not use workers’ compensation claims as “motivation” to fire or otherwise discriminate against injured employees.  The bill was necessitated by a 2014 Missouri Supreme Court decision.  The court’s ruling in Templemire v. W&M Welding broadened the state’s standard.  It opened the door to additional lawsuits due to the lower “contributing factor” standard established by the court. 

The proposed “motivating” standard has already been passed by the Missouri Senate.  Changing Missouri’s law to look for motivation in these cases will bring the state in line with federal law and help improve Missouri’s legal climate. 

The same committee heard SB 66.  The bill addresses the Missouri Supreme Court’s decision in Greer v. Sysco Foods, allowing workers to re-open their workers’ compensation claims if they decide to seek additional medical treatments (even years after a doctor says they have recovered).  SB 66 addresses this concern by stopping temporary workers’ compensation benefits once an employee reaches maximum medical improvement, the point when a physician determines the employee’s condition is stable and is not expected to improve further. 

 

 

Workplace Laws

A law that ensures consistent workplace standards across Missouri was jeopardized by a Missouri Supreme Court ruling on February 28th.  On April 25th, the Missouri Supreme court declined to reconsider its earlier ruling, upholding St. Louis’ proposed $10-an-hour city minimum wage, meaning that wage could go into effect by May 1st and $11-an-hour by 2018.  This law, and many others, are now in question as the Supreme Court reached back to overturn a 1998 law in order to allow St. Louis city to raise its minimum wage.  The ruling can have short-term and long-term effects. 

 

State Budget

The first week of April, the House approved all 13 budget bills that made up the state’s $27.7 billion budget.  These include increased allocations to some items the Governor’s budget had cut entirely, although they were not fully restored.  The budget will now move to the Senate.  The legislature is constitutionally required to pass a budget by May 5th

 

Federal News

DOL

The AFL-CIO plans to sue the DOL if it “dilutes” the final overtime rule that was to take effect December 1, 2016.  The final rule was put on hold late last November as a result of a court injunction after many employers had scrambled to comply.  Trump Department of Labor nominee, Alexander Acosta (which it is looking like he will probably be confirmed), feels doubling the salary threshold, as the Obama DOL final rule was set to do, could create a “stress on the system” and surpass the legal authority of the DOL.  He said it is, “something that needs to be considered….the impact it has on the economy, on nonprofits, on geographic areas that have lower wages.”  Southwest Missouri is one of the geographic areas where the dramatic increase outlined in the final rule may not make sense. 

As of Thursday, April 27th, Acosta was confirmed by the Senate as the Department of Labor Secretary.

 

Affordable Care Act

At the February SAHRA meeting this year, our speaker presented a legislative update with a common refrain: “Wait and see.”  In regard to the ACA (Obamacare), we are now on the 30th repeat of this chorus: “Wait and see.”  After a week in which the President promised a vote on the issue of “repeal and replace,” the vote did not take place.  The White House offered a new proposal on April 4th which tweaks the proposed American Health Care Act of 2017.  Will these adjustments be sufficient to appease the various factions of the Republican-led Congress?  “Wait and see.” 

The US News website maintains a link dedicated solely to this issue.  To stay up on the daily twists and turns that is Healthcare in America and how it impacts HR and business, check:

https://www.usnews.com/topics/subjects/affordable-care-act

 

Affirmative Action

On March 28th, President Trump issued an Executive Order that nullified “Executive Order 13673 – Fair Pay and Safe Workplaces” or also known as the “Blacklisting” Executive Order.  President Trump’s Executive Order directs the DOL and other executive agencies to consider “promptly” rescinding any orders, rules, regulations, guidance, guidelines or policies implementing or enforcing any provisions contained in Executive Order 13673.   Past President Obama put Executive Order 13673 in place to ensure that companies with federal contracts comply with 14 labor and civil rights laws.  The Fair Pay order was put in place after a 2010 Government Accountability Office investigation showed that companies with rampant violations were being awarded millions in federal contracts.  In an attempt to keep the worst violators from receiving taxpayer dollars, the Fair Pay order included such things as making employers:

·         Disclose alleged labor violations under federal or state law during the past three (3) years as part of the bidding process for federal contracts.

·         Comply with required paycheck transparency such as sharing specific pay information with workers under a federal contract/subcontract each pay period to include number of hours worked, number of overtime hours, rate of pay, gross pay and itemized additions or deductions from gross pay.

·         Eliminate any requirements for mandatory arbitration provisions/agreements in Title VII claims.    

 

Legislative and Governmental Affairs Committee Chairperson Kelli R. Fleck attended the MO State Council of SHRM Employment Law Conference in Jefferson City on Thursday, April 20th.  She will update us on that next month.  

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